The Masculine Bias of the Philippine Justice System

Last February 23 was a very interesting and thought inducing experience for me, and I dare say, for my entire class in Legal Logic and Technique. Using Toulmin's Model of presenting arguments, we were given cases by our professor upon which to analyze. The end-result would be a presentation of the merits of the case for and against it using Toulmin's Model.

The cases were those of Rommel Silverio versus Republic (G.R. No. 174689, October 22, 2007) and Republic versus Jennifer B. Cagandahan (G.R. No. 166676, September 12, 2008). The Silverio case is about an individual who had undergone a sex reassignment surgery and was petitioning the Supreme Court to have his name and sex changed to reflect his transition from male to female.  In said case, the Court rejected the petitioner's prayer arguing, rightly unfortunately, that there is no legal basis for such endeavor. The main crux of the Court's argument is is R.A. 9048, Section 2(c) which prohibits the changing of nationality, age, status or SEX in the civil registry. On the other hand, the Cagandahan case is about a genetically female individual who has developed a condition known and certified by a medical certificate as Congenital Adrenal Hyperplasia (CAH). Such condition predisposes the individual to produce excessive sex hormones, in the case of Cagandahan, there was an excess of the production of androgens, the male hormone, this resulted in the petitioner developing masculine characteristics and the stunting of her breast development, the arresting of  her ovarian structures, and absence of menstruation. For all intents and purposes, the petitioner thought of herself as male and adopted its corresponding social roles, she also looked more or less masculine. In said case, the court agreed with the petitioner's prayer that her name and sex be changed from female to male.

It is worth noting that in both cases, there was actually no legal basis to grant the prayers of both parties. As mentioned earlier, the governing law regarding changes in name and sex as it appears on the Civil Register is R.A. 9048 and it specifically prohibits the changing of nationality, age, status or SEX. However, in the Cagandahan case, the Court ruled in the petitioner's favor. The main reason for the Court's decision is basically on the premise that since the petitioner considered himself and lived as a male, considering also that she has CAH and that anyway her body is, although genetically female, effectively more tilted to being male as her female reproductive organs are non-functioning and undeveloped, then she should be allowed to live as a male and correspondingly, be allowed to change her name and sex as it appears in the civil registry.

R.A. 9048 speaks of no qualifiers for the grand of name and sex change in that it just prohibits the same. However, in the Cagandahan case, there seems to be a bias towards a "change" to being male. Although in the Cagandahan case the petitioner did not really do anything active towards her body, unlike in the Silverio case that a medical procedure was performed to anatomically change the birth genitalia of the petitioner, still, in both cases, the petitioner's were moving for a change to the gender they  most identified with. It is worth remembering that in the Cagandahan case, the petitioner is identified to be genetically female - the court therefore is redefining what femaleness or maleness for that matter really is. In the Silverio case, the petition was rejected because there is no legal basis for the move, citing that reasons of equity cannot be basis of granting the petition. But this is exactly what happened to the Cagandahan case, reasons of equity, although not equivocally articulated, was the basis for the grant of the petition. Jennifer Cagandahan is genetically female although her female sex organs were undeveloped and ambiguous. Rommel Silverio is genetically male, although he had them changed to female though an operation.

The only difference therefore between the two cases is that one actively changed her sex while the other relied on the ambiguity of a medical condition - nevertheless, both has no legal basis yet the Cagandahan case was acted on positively. There is only one conclusion - the Court is biased towards the male sex. Once again, latent and sublime sexism reveals itself in the most auspicious and cunning way cloaked under the banner of legalistic foreplay.

It is sad that in the 21st century, the long running animosity and bias towards half of the human race is still alive and running - in a country that claims to be republican, secular and democratic.